Ellesmere: Crown blamed

Press, 14 August 1984, Page 21

Ellesmere: Crown blamed

DERRICK ROONEY, in his third article, continues his investigation of the public’s legal rights of access to rivers and lakes. The series will be completed tomorrow.

A classic example of the access problems inherited as a result of the mistakes — and attitudes — of past administrations in New Zealand is to be seen in the confusion which surrounds the rights of public access to Lake Ellesmere, the largest body of water in Canterbury and one of the largest lakes in New Zealand. Lake Ellesmere, covering about 220 square kilometres, and its associated wetlands comprise one of the largest wildlife resources in New Zealand, and has been recommended for designation as a wetland of international importance. Yet a major report on the Ellesmere resource, published by the Lands and Survey Department in 1982, said that there is “considerable public confusion regarding the status, ownership, and/or controlling agency of many areas of land around Lake Ellesmere.” The complexity of tenure in the area stems from its curious history, which indicates that in times past public access to this major wetland area was given very low priority, and that an earlier generation of New Zealanders had a low opinion of the value of this major wildlife and recreational resource. An unformed legal road, 20.12 m wide, traverses much of the lake edge - but this edge was defined when the lake was at an artificially low level. Natural fluc-

tuations in the lake level mean that for much of the year the road is under water. Even when the lake is low it is doubtful whether the road is fully negotiable because several deep drains cut across it, and part of the road reserve runs across mud-flats. Several areas adjoining the lake are designated as “reserves,” but are not actually reserves within the meaning of the Reserves Act, and the public’s right of access to some of them is doubtful. An indication of the complexities of ownership and leaseholds is that some 53 separate parcels of land in the lake area are under the control of various public agencies, including local authorities, ad hoc bodies, and the Crown. Most of the lake shore, however, is land leased “in perpetuity” (L.1.P.), and thus to all intents and purposes in private ownership. Nearly all of the L.I.P. leases were issued by the Crown in the 1890 s, under the Land Act, 1892, and extend for 999 years. Their purpose at the time of issue was to raise money for reclamation and railway projects, but they have long ceased to have any value for this purpose, and since 1936 the

small annual amounts paid by the leaseholders have gone into the Consolidated Fund. The annual rentals were set at 4 per cent of the cash price of the land at the time the leases were issued, and are, in the words of the department, “absurdly low” today. Consequently, leaseholds in the area change hands at freehold prices. Public access to the lake is ill defined. According to figures published by the department, the “ordinary” public have legal access to less than 25 per cent of the shoreline. Access is provided to a further 10 to 17 per cent of shoreline, depending on lake levels, for the holders of fishing or shooting licences. Some 31 legal roads run to the lake edge, but only four of those are formed and maintained as roads. These are the only easy access for the majority of recrea-

tional users. Four other legal roads are usable gravel tracks, possibly with minor obstructions such as gates. Of the remaining 23, the department’s report said in 1982 that four had significant obstructions, such as illegally locked gates, “No trespassing” signs, or major drains across the road. Fishermen and shooters enjoy rights of access to some areas not open to the general public because of clauses in some Crown lease agreements which provide for access for holders of fishing and shooting licences, so that they can fish, shoot, or build mia mias. However, no provision is made for vehicular access for licenceholders, and the clauses are not included in the L.I.P. leases which cover the greater part of the lake edge. More anomalies come to light when the history of these leasehold tenures is considered. For example,

the department has a legal opinion that because of the provisions for reclamations in the Land Act, 1892, L.I.P. lessees may undertake reclamation works affecting navigable waters, without approval under the Harbours Act. There are no land-use guidelines, other than for reclamation, in either the 1892 act or the registered lease agreements. The department considers that the public have a right to navigate over the lake waters which cover these leasehold lands, but do not have a right to wade through these waters — a rather curious situation, to say the least. However, before a landholder can prove a case for trespass he or she must first define adequately the legal boundaries. Only two properties on the lake edge, says the department, are known to have boundaries adequately defined “on the ground.” Summarising the situation, the department’s report says: “The right of public access to rivers, lakes, and the coastline is highly regarded in New Zealand

society. New Zealand water bodies are generally well provided with legal roads, Crown land strips or reserves, either along permanent riverbanks or above normal or

flood lake levels or mean highwater mark. When providing such access, the general rule that prevails is that the access must be practical, even if practical on foot only. ' “At Lake Ellesmere, public access to and around the lake is not well provided, and often fails to meet a practical access standard. “The legal road around most of the lake perimeter... serves little or no practical or legal purpose. For several months of the year, the perimeter legal road and landward is covered by lake waters. The point needs to be made here that the lake waters are not flood waters. The lake waters spreading on to the perimeter lands are the result of natural lake-level fluctuations on a natural lake. “The problem of public access has in the main been caused by Crown disposal during the 1890 s of areas of lake bed while optimistically hoping that the lake levels could be held at a low level. Time has shown that what the Crown in fact did was dispose of extensive public access rights.”

Tomorrow: Public has few legal rights of access to lakes or rivers.